The Assembly of Delegates of International PEN – Tokyo

19 Nov 2010

The Assembly of Delegates of International PEN meeting at its 76th Congress in Tokyo, Japan 25 September – 1 October 2010

Welcomes that freedom of expression is specifically protected in Clause 16 of South Africa’s 1996 Constitution, which guarantees the “freedom to receive or impart information or ideas”.

Is alarmed that South Africa’s parliament is currently considering a bill, titled the Protection of Information Bill. The Bill has a number of very worrying aspects. This Bill, in essence, proposes that access to information be severely curtailed in order to protect South Africa’s “national interest.”

These include the following:

1. The power to classify extends to all state entities including government departments, state-owned companies (which compete with private companies), provincial and local authorities.

2. “National security” considerations override democratic rights.

3. Key consideration in classification decisions is the “national interest.” This is very broadly defined

4. Officials can classify en-bloc, and without recording reasons for classification decisions at time of classification.

5. The Minister of State Security, whose business is secrecy, would be made arbiter of classification and declassification decisions.

6. Extremely heavy penalties of up to 25 years; prescribed minimum sentences often without the option of a fine.

7. “Hostile activity offences” replicate spying offences but without onus on the state to prove intention to benefit a foreign state, merely that offender “should have known” that breach of classified information would prejudice the state, even indirectly. Penalty up to 25 years

8. Simple possession or disclosure of classified information is criminalised for any person, not just for those on whom there is an original duty to protect classified info.

9. Simple possession or disclosure even of information not formally classified can be penalised by imprisonment of up to 15 years

10. This Bill is not synchronised with existing whistleblower legislation in the Protected Disclosures Act and public interest overrides in the Promotion of Access to Information Act. The Bill trumps the protection these Acts afford to the disclosure of crime, abuse of power, threats to public safety, etc. Possession and disclosure of classified (and potentially some unclassified) information is penalised by the same heavy penalties of up to 25 years even where the intention is to expose, for example, corruption or environmental threats.

Is disturbed that the prime targets of this legislation are journalists, but that writers are equally vulnerable.

Pointing out that transparency and the access to information are fundamental to democratic governance. The South African constitution states that ‘everyone has the right of access to any information held by the state…that is required for the exercise or protection of any rights.’ The Protection of Information Bill, flawed in multiple ways, subordinates this constitutionally enshrined transparency to a broadly and vaguely defined ‘national interest’. This includes ‘all matters relating to the advancement of the public good…the survival and security of the state and the people of South Africa…the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations.’

Particularly concerned that it will not be a judge or a panel of constitutional experts who decide what information must remain secret because it might be ‘harmful’ to the ‘national interest’. This will be decided by the heads of the organs of state and their subordinate officials who will, in turn, be advised, trained and supported by the National Intelligence Agency.

Fearing that this will result in the establishment of an Orwellian censorship system at all levels of government, municipal, regional and national. Those who breach this proposed bill will be liable for jail terms (of up to 25 years) and to punitive fines.

Considers that this proposed Bill, though likely to be rejected by the Constitutional Court of South Africa, is a direct threat to the constitutional rights of South Africans and to the duty of journalists and writers to expose corruption and abuses of power. As such this proposed legislation should be vigorously opposed.

Noting that South African PEN has joined forces with a large number of other civil society organisations to reject this Bill, and leading writers including Zakes Mda, Andre Brink and Nadine Gordimer have been outspoken in their rejection of this retrogressive legislation.

Calls on the support of all PEN centres and International PEN in opposing the Protection of Information Bill.

About Us

PEN South Africa, founded in 1927, is one of more than 140 Centres of PEN International, which currently operate in over 100 countries. A worldwide, politically non-aligned organisation of writers, PEN International is dedicated to promoting freedom of expression, and encouraging the growth and strengthening of literature. Its foundational text is the PEN Charter, which all Centres and members of PEN must uphold.